DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12 December 2025 has been entered.
Claims 11-20 are withdrawn; claims 1-10 are pending.
Response to Arguments
Applicant’s arguments, see “Remarks”, filed 12 December 2025, with respect to the rejection(s) of claim(s) 1-10 under Howard have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Mackellar.
Claim Rejections - 35 USC § 112
In view of the amendments received 12 December 2025, the Examiner withdraws the rejection of claims 1-10 under 35 USC 112, first paragraph, or 35 USC 112(a).
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mackellar et al (U.S. 2019/0246982). Mackellar discloses (Figure 3) receiving, from a first electrode (par. 0036), a first electronic signal from a skin in a first ear canal of a user of an in-ear device; receiving, from a first microphone (par. 0111), a first acoustic signal from the first ear canal of the user of an in-ear monitor; forming an acoustic waveform with the first acoustic signal; forming an electronic waveform with the first electronic signal; processing the acoustic waveform and the electronic waveform to obtain signal data; detecting, from the acoustic waveform of the first acoustic signal that includes a sound gesture generated by the user as an input command, the sound gesture encoded in the acoustic waveform as the input command (par. 0138); executing the input command on a device associated with the user; and inferring a health condition of the user based on the signal data (“The differential evoked response and the evoked response can be compared, and the comparison can be used to derive information about the user (e.g., cognitive processes utilized by the user, cognitive decline, fatigue, hearing acuity, etc.).”).
Regarding claim 2, Mackellar discloses (par. 0128) receiving, from a second electrode, a second electronic signal from the skin in the first ear canal of the user of the in-ear device, and removing an interference from the first electronic signal with the first electronic signal.
Regarding claim 3, Mackellar discloses (par. 0130) receiving, from a second electrode, a second electronic signal from the skin in a second ear canal of the user of the in-ear device, and identifying an eye gaze direction based on the first electronic signal and the second electronic signal.
Regarding claim 4, Mackellar discloses (par. 0138) receiving an acoustic signal from an external microphone in the in-ear device in response to an acoustic stimulus; correlating the acoustic signal with the first electronic signal; and assessing a user response to the acoustic stimulus based on a brain activity from the first electronic signal and the acoustic stimulus.
Regarding claim 5, Mackellar discloses (par. 0111) receiving, from a second microphone, a second acoustic signal from the first ear canal of the user of the in-ear monitor; forming a second waveform with the first acoustic signal filtered from the second acoustic signal; and providing the second waveform to the user via a speaker, wherein the second acoustic signal is an audio signal from an external environment of the user (par. 0138).
Regarding claim 6, Mackellar discloses (par. 0138) providing, with a speaker, a sound signal into the first ear canal, for the user, wherein the first acoustic signal comprises a back reflection of the sound signal, from an inner ear, and wherein identifying a health condition of the user comprises determining a hearing condition of the user based on a delay and amplitude of the back reflection of the sound signal.
Regarding claim 7, Mackellar discloses (par. 0020) detecting the input command comprises identifying a sound gesture from the acoustic waveform, and the computer-method further comprises executing the input command on a smart glass device.
Regarding claim 8, Mackellar discloses (par. 0071-0072) identifying a health condition of the user further comprises performing a spectral analysis on the electronic waveform to identify a p-wave, a QRS-complex, and a T-wave complex in an electro-cardiogram.
Regarding claim 9, Mackellar discloses (par. 0067) the first acoustic signal is an internal signal from a body of the user and identifying a health condition of the user comprises determining a heart rate of the user based on the acoustic waveform.
Regarding claim 10, Mackellar discloses (par. 0067) identifying a health condition of the user comprises generating a spectrogram of the acoustic waveform; and identifying at least a heart rate value from the spectrogram of the acoustic waveform.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH L MALAMUD whose telephone number is (571)272-2106. The examiner can normally be reached Mon - Fri 1:00-9:30 Eastern.
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/DEBORAH L MALAMUD/Primary Examiner, Art Unit 3792